Petition for Writ of Certiorari — Gathercole v. Global Associates

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SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1984

CLARK B. GATHERCOLE,

PETITIONER,

Vs.

GLOBAL ASSOCIATES,

RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KIM MALCHESKI

MALCHESKI, PARKER &

RANDOLPH

707 Cortland Avenue

San Francisco, CA 94110

(415) 826-6900

Attorney for Petitioner

QUESTIONS PRESENTED

Where Petitioner Clark B. Gather-

cole was discharged at the age of 60 from

his employment as a public aircraft

pilot with Global Associates pursuant to

its contract with the United States Army

which incorporated the Federal Aviation

Agency's mandatory retirement age of 60

for commercial airline pilots [14 C.F.R.

§121.383(c) (1982)] and applied it to

Global Associates' air operations at the

Kwajalein Missile Range:

1. Whether, as a matter of law, age

less than 60 is a bona fide occupational

qualification (BFOQ) under the Age Dis-

crimination in Employment Act (ADEA) 29

U.S.C. §621 et seg., for Global Associ-

ates' public aircraft pilots employed

under contract with the United States

Army.

2. Whether the Federal Aviation

Agency's age 60 mandatory retirement

provision for commercial airline pilots

may establish as a bona fide occupational

qualification for Global Associates'

public aircraft pilots who were not com-

merical airline pilots under the juris-

Giction of the Federal Aviation Agency.

3. Whether the Department of Labor

regulation [29 C.F.R. §860.102 (1981)],

interpreting the bona fide occupational

qualification (BFOQ) exemption of the

ADEA, establishes a BFOQ as a matter of

law for Global Associates' public air-

craft pilots.

4. Whether Global Associates'

economic interest in maintaining its con-

tract with Army requiring Global to dis-

charge pilots at age 60 establishes a

BFOQ as a matter of law.

TABLE OF CONTENTS

Page

Petition..... eocececcesessesseseeseee 4

Gpdmiones Below. .cccccscsescscssesees 4

TUPISGLSEION. cccccccececessssecsesss &

Statutory and Regulatory Provisions. 2

Statement of the Case...........2.2- 7

Reasons for Granting the Petition... 15

CONCLUSION. .ccccecccccccecs ostacsese Of

ADPENGIX A.wwccccccccccccccsesecscsese 1a

Appendix B........... eoscecsescceses S68

APPENGIX Cw cccccccccccccescesccsesse 39a

APPENGIX D..cccccccccccccccccsecccee 41a

TABLE OF AUTHORITIES

Cases:

ALPA v. Trans World Airlines,

713 F.2d 940 (2nd Cir. 1983),

cert. granted, 52 U.S.L.W.

3625 (U.S. 1984) (No. 83-997),

cert. granted sub nom., ALPA

v. Thurston, 52 U.S.L.W. 3720

(U.S. April 2, 1984)

(No. 83-1325).... eeeeee eeeeeeee

City of Los Angeles v. Manhart,

435 U.S. 702 (1578) seece seeeees

Criswell v. Western Airlines,

709 F.2d 544 (9th Cir. 1983),

etition for cert. filed,

2 U.S.L.W. 3722 (U.S. March 16,

1984) (Mo. BS 1548) .cccccscceces

Dothard v. Rawlinson,

SSS Gels SER CEPT UP sccdees ikoeee

EEOC v. City of St. Paul,

671 F.2d 1162 (8th Cir.1981)...

EEOC v. County of Los Angeles,

706 F.2d 1039 (9th Cir. 1983),

cert. denied, U.S.__, 104

BeGSee 984 (1984)... eeereee eee et ee

EEOC v. County of Santa Barbara,

666 F.2d 373 (9th Cir. 1982)...

Houghton v. McDonnell Douglas

Corp., 553 F.2d 561 (8th Cir.

), cert. denied, 434 U.S.

966 (1977), reaff'm under law

of the case, 627 F.2d 858

CBGR CAE. B9SO) cccccccccsceses

17,22

22,23

iii

Monroe v. United Air Lines,

736 F.2d 394 (7th Cir. 1984).. 22

Orzel v. City of Wauwatosa,

697 F.2d 743 (?th Cir. 1983},

cert. denied, U.S.__, 104

Die Se SE n046666400.4004 8.37,32

Smallwood v. United Air Lines,

661 F.2d 303 (4th Cir. 1981),

cert. denied, 456 U.S. 1007,

102 S.Ct. 2299 (1982)......... 21,23

Tuohy v. Ford Motor Co.,

6 F.2d 842

GOR GES. BSS) cecceeesesess 16,17,21,23

Statutes:

Age Discrimination in

Employment Act, Publ. L. No.

90-202, 81 Stat. 603, as

amended by Pub. L. No.

95-256, 92 Stat. 189:

29 U.S.C. §621(b)....... 0 eee 2,8

29 U.S.C. $623 (a) ccc ceeeeee 3,8,9

29 U.S.C. §623(f£)......2 2 eee 3,8,9

29 U.S.C. §$626(c)..... 2. 00e 9

29 U.S.C. $628... cee eeee eee 30

2B U.S.C. §$1254(1) .. cc ccccees 2

2B U.S.C. SLZZL. cc cece ecccvees 9

28 U.S.C. §1337.....00- eecccecs 9

49 U.S.C. §1301(36)........6.8- o

Regulations:

Federal Aviation Agency:

14 C.F.R. §121.383(c) (1982)...

Department of Labor:

29 C.F.R. §860.102 (1981)......

29 C.F.R. §860.103(h) (1981)...

Department of Defense Procurement:

Regulations:

32 C.F.R. Vol II, §9, pt. 9

(1982) ...20% TUT TT TTT TT oseece

Other Authorities:

EEOC Notice, 46 Fed. Reg. 47724,

Reorganization Plan No. 1 of

1978, 43 Fed. Rg. 19807..........

Executive Order 12144, 44 Fed.

Reg. 37193. .cccccccescccccscccces

passim

aA as ams hlsiae wien,

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1984

NO.

CLARK B. GATHERCOLE, PETITIONER,

GLOBAL ASSOCIATES, RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

The petitioner, Clark B. Gathercole,

respectfully prays that a writ of cer-

tiorari issue to review the judgment and

opinion of the United States Court of

Appeals for the Ninth Circuit in this

case.

OPINIONS BELOW

The opinion of the Court of Appeals

(App. A, infra, la-15a) is repo.ited at

727 F.2d 1485. The opinion of the Dis-

trict Court for the Northern District of

California (App. B, infra, 16a-38a) is

reported at 560 F.Supp. 642.

JURISDICTION

The judgment of the Court of Appeals

for the Ninth Circuit was entered on

March 14, 1984 (App. A, infra la-15a). A

timely petition for rehearing and sug-

gestion for rehearing en banc was denied

on July 25, 1984 (App. C, infra, 39a-

40a), and this petition for certiorari

was filed within 90 days of that date.

The jurisdiction of this court is invoked

under 28 U.S.C. §1254(1).

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

l. United States Code, Title 29,

section 621 (b), section 2(b) of the Age

Discrimination in Employment Act, Pub.

L. No. 90-202, 81 Stat. 603, as amended

by Publ. L. No. 95-256, 92 Stat. 189,

provides:

It is therefore the purpose of

this Act to promote employment

of older persons based on their

ability rather than age; to pro-

hibit arbitrary age discrimina-

tion in employment; to help em-

ployers and workers find ways of

meeting problems arising from

the impact of age on employment.

2. United States Code, Title 29,

section 623, section 4 of the Age Dis-

crimination in Employment Act, Pub. L.

No. 90-202, 81 Stat. 603, provides in

relevant part:

(a) It shall be unlawful for an

emp loyer--

(1) to fail or refuse to

hire or to discharge any

individual or otherwise

discriminate against any

individual with respect

to his compensation, terms,

conditions, or privileges

of employment, because of

such individual's age; ©

x «keer

(f) It shall not be unlawful

for an employer, employment

agency, or labor organization--

(1) to take any action

otherwise prohibited under

subsections (a), (b), (c),

or (e) of this section where

age is a bona fide occupa-

tional qualification reason-

able necessary to the normal

operation of the particular

business...

3. United States Code, Title 49,

section 1301(36), as amended, Pub. L. No.

95-162, §17(b), 91 Stat. 1286, Pub. L.

No. 95-504, §2, 92 Stat. 1705, provides:

"Public aircraft" means an air-

craft used exclusively in the

service of any government or of

any political subdivision there-

of, including the government

of any State, Territory, or pos-

session of the United States, or

the District of Columbia, but

not including any government-

owned aircraft engaged in car-

rying persons or property for

commercial purposes.

4. Code of Federal Regulations,

Title 14, section 121.383(c) (1982),

Federal Aviation Agency, 29 F.R. 19212,

as amended by Amdt. 121-144, 43 F.R.

22646, provides:

No certificate holder may use

the services of any person as

a pilot on an airplane engaged

in operations under this part

if that person has reached his

60th birthday. No person may

serve as a pilot on an airplane

engaged in operations under

this part if that person has

reached his 60th birthday.

5. Code of Federal Regulations,

Title 29, section 860.102 (1981),

Department of Labor, 33 F.R. 9172, re-

scinded by Equal Employment Opportunity

Commission, 46 F.R. 47724, 47725 (Sept.

29, 1981), provides in relevant part:

(a) Section 4(f)(1) of the Act

provides that "it shall not be

unlawful for an employer, em-

ployment agency, or labor or-

ganization. . .to take any action

otherwise prohibited under para-

graphs (a), (b), (c) or (e)

of this section where age is a

bona fide occupational qualifi-

cation reasonably necessary to

the normal operation of the

particular business. ..

Mia

Mae

(b) Whether occupational quali-

fications will be deemed to be

“bona fide" and "reasonably

necessary to the normal opera-

tion of the particular busi-

ness", will be determined on

the basis of all the pertinent

facts surrounding each particu-

lar situation. It is anticipated

that this concept of a bona fide

occupational qualification will

have limited scope and applica-

tion. Further, as this is an

exception it must be construed

narrowly, and the burden of proof

in establishing that it applies

is the responsibility of the

employer, employment agency, or

labor organization which relies

upon it.

tions of possible bona fide

occupational qualifications.

(ad) Federal statutory and regula-

tory requirements which provide

compulsory age limitations for

hiring or compulsory retirement,

without reference to the indivi-

dual's actual physical condition

at the terminal age, when such

conditions are clearly imposed

for the safety and convenience

of the public. This exception

would apply, for example, to

airline pilots within the juris-

diction of the Federal Aviation

Agency. Federal Aviation Agency

regulations do not permit air-

SS ee ee RR

ment

Federal Regulations, voiume II, section

9, part 9

part:

line pilots to engage in carrier

operation, as pilots, after they

reach age 60... .

6. Department of Defense Procure-

Regulations, Title 32, Code of

12-1901 Policy Regarding Non-

discrimination Because of Age.

It is the policy of the Execu-

tive Branch of the Government

(i) that contractors and sub-

contractors engaged in the per-

formance of Federal contracts

shall not, in connection with

the employment, advancement, or

discharge of employees or in

connection with the terms, con-

ditions, or privileges of their

employment, discriminate against

persons because of their age

except upon the basis of a bona

fide occupational gualification,

retirement plan, or statutory

requirement. ...

STATEMENT OF THE CASE

1. In 1967, Congress enacted the

Age Discrimination in Employment Act

(ADEA) in order to prohibit discrimina-

(1982), provides in relevant

tion in employment on the basis of age.

29 U.S.C. §621 et seg. (1976 and Supp. V

1981). The stated purposes of Congress

in enacting the ADEA were to promote em-

ployment of older persons based on their

ability rather than age, and to prohibit

arbitrary age discrimination in employ-

ment. 29 U.S.C. §621(b). Section 4(a)

of the ADEA makes it “unlawful for an

employer. . .to discharge any individual

- . »because of such individual's age.

~- - -" 29 U.S.C. §623(a) (1). There is

an exception to this prohibition where

an employer discharges an individual

"where age is a bona fide occupational

qualification reasonably necessary to

the normal operation of the particular

business. . ." 29 U.S.C. §623(f) (1).

Petitioner, Clark B. Gathercole

(Gathercole), filed complaint against

his employer, Global Associates (Global),

alleging that Global's discharge of

Gathercole violated section 4(a) of the

ADEA, 29 U.S.C. §623(a). Global invoked

as a.defense section 4(f) of the ADEA, 20

U.S.C. §623(f), contending that Gather-

cole's age was a "bona fide occupational

qualification" (BFOQ) under that section.

Jurisdiction of the District Court arose

under 29 U.S.C. §626(c) and 28 U.S.C.

§§1331, 1337. Following a three-day jury

trial, a jury found that Global's policy

requiring all of its pilots to retire at

age 60 regardless of their individual

health was not justified as a bona fide

occupational qualification; and, there-

fore, violated the ADEA, 29 U.S.C. §621

et seg. (App. D, infra, 4la-42a). The

District Court denied Global's motion

for judgment notwithstanding the verdict.

560 F.Supp. 642 (App. B, infra, 16a-28a).

2. Gathercole was employed as an

aircraft pilot by Global from 1964 until

August 5, 1979, his 60th birthday, when

he was removed from active flight status

leading to his formal discharge on August

8, 1979 (RT 28). Gathercole was discharged

solely because of his age, 60 (RT 81).

Pursuant to its contract with the

U.S. Army, Global provided logistical

support services, including air trans-

portation of passengers and cargo, for

the Kwajalein Missile Range (Kwajalein)

in the South Pacific (RT 203-8). The

Army incorporated into its contract with

Global the FAA's age 60 rule [14 C.F.R.

§121.383(c)] which required the manda-

tory retirement of commercial airline

"RT" refers to the page number of the

reporter's transcript of the jury trial

in this case.

pilots at age 60. However, Global's

contract excluded approximately 40 FAA

Part 121 regulations for commercial air-

lines, many of which affected passenger

safety (RT 170-75). Global's pilots flew

public aircraft owned by the Army which

were not within the jurisdiction of the

FAA (RT 134-35).

Gathercole piloted two-engine Cari-

bou aircraft which carried a maximum of

30 passengers (RT 39). The Caribou had

a three-member crew, including a pilot,

co-pilot and flight attendant (RT 41).

Gathercole's duties consisted primarily

of transporting passengers several times

daily between three islands in the

Kwajalein Atoll, the longest distance be-

tween the islands being 50 miles (RT

45). The weather conditions at Kwajalein

were excellent, allowing for easy flying

by pilots (RT 45).

On July 28, 1978, Gathercole formally

requested Global to waive its age 60 rule

so he would not be discharged at 60 (RT

71). Global denied Gathercole's request

on August 4, 1978, relying upon its con-

tract with the Army and a possible in-

crease in its insurance premium (RT 74).

On July 5, 1979, Gathercole again re-

quested Global and the Army to waive

their age 60 rule, which was denied by

the Army on Global's recommendation (RT

79-80).

Gathercole was competently and effi-

ciently performing his duties when

removed from his position as a pilot on

August 5, 1979 (RT 81-2). Three months

before his discharge in an annual evalu-

ation report, Gathercole was rated from

"good" to "excellent" in all areas of

work (RT 75). On August 3, 1979, Gather-

cole passed a FAA First Class Medical

Examination only two days before his dis-

charge (RT 80). Global intentionally

discharged Gathercole because of his age,

and was cognizant of the fact that its

air operations were not governed by the

FAA age 60 rule (RT 248, 267).

It was established at trial that age

60 is not related to the competency and

fitness of pilots to safely perform their

job duties (RT 162-66). Furthermore,

the risks of incapacitating and debili-

tating diseases do not significantly in-

crease for 60-year-old pilots, anc medi-

cal science is able to accurately test

individuals for incapacitating and debil-

itating diseases which would adversely

affect a pilot's ability to safely per-

form his duties (RT 346). Global's

medical expert admitted at trial that

there was no medical basis to validate

Global's age 60 rule (RT 346).

REASONS FOR GRANTING THE PETITION

I. THE COURT OF APPEALS ERRED BY

HOLDING THAT GLOBAL ESTABLISHED

A BFOQ AS A MATTER OF LAW BY

RELYING UPON THE FAA'S AGE 60

RULE WHERE GATHERKCOLE WAS NOT

A COMMERCIAL AIRLINE PILOT.

The only issue the Court of Appeals

Global's discharge of Gathercole solely

because of his age meets the bona fide

occupational exception (BFOQ) of the Age

Discrimination in Employment Act (ADEA)

[29 U.S.C. §623(f)(1)] (App. A, infra,

8a) (emphasis in the original). The

Court of Appeals concluded that Global

should have been afforded the protection

of the BFOQ exemption of the ADEA, 20

U.S.C. §623(f)(1) (App. A, infra, 10a-

l2a).

The Court reasoned that Global was

required to follow the express provision

of its contract with the Army which in

turn could accept at "face value" the

Federal Aviation Agency's (FAA) "pro-

claimed standard of necessary minimum

qualification” for commercial airline

pilots [the FAA's age 60 rule, 14 C.F.R.

§121.383(c)] (App. A, infra, lla).

According to the Court, Global was in no

position to challenge the FAA's age 60

regulation without losing its Army con-

tract (App. A, infra, 12a).

The Court of Appeals’ holding

squarely conflicts with that of the Sixth

Circuit in Tuohy v. Ford Motor Co., 675

F.2d 842, 843 (6th Cir. 1982), on the

issue of whether the FAA's age 60 rule

automatically establishes a BFOQ for 60-

year-old non-commercial airline pilots.

The Sixth Circuit in Tuohy v. Ford Motor

Co., supra,held that Ford Motor Co.,

which employed private corporate pilots

to fly passenger aircraft not controlled

by part 121 of the FAA's regulations (14

C.F.R. §121.1 et seg.), could not rely

upon the FAA's age 60 rule to establish

that age less than 60 is a BFOQ as a mat-

tery of law for its pilots. Id., at p.

845. "The Age 60 Rule which the FAA has

never seen fit to apply to corporate

pilots does not foreclose further in-

quiry." Id. Accord, Criswell v. Western

Airlines, 709 F.2d 544, 551 (9th Cir.

1983), petition for cert. filed, 52

U.S.L.W. 3722 (U.S. March 16, 1984) (No.

83-1545), (improper for airline to rely

upon medical rationale underlying the

FAA's age 60 rule when the FAA never

applied it to flight engineers for com-

mercial airlines) .+

In this case it is not disputed that

Global's air operations were not con-

trolled by the FAA, and that Gathercole

was a pilot of public aircraft which are

not governed by the FAA's age 60 rule.

lin a related case, Orzel v. City of

Wauwatosa, 697 F.2d 743, 750 (7th Cir.

1983), cert. denied, U.S. _, 104 S.

Ct. 484 (1983), the Seventh Circuit re-

jected the City's contention that a con-

gressional statutory mandatory retire-

ment age for federal firefighters auto-

matically established a BFOQ for the

City's firefighters. The Seventh Cir-

cuit reasoned that “the fact that Con-

gress has determined age 55 is an appro-

priate retirement age for one group of

firefighters does not automatically

establish that the same retirement age is

a valid BFOQ. . .for a wholly different

group of employees, operating under dif-

ferent working conditions and performing

significantly different job functions."

49 U.S.C. §1301 (36).% The Army does

not have a regulation comparable to the

FAA's age 60 rule for either Army pilots

or pilots employed by civilian contrac-

tors. In fact, a Department-of Defense

Procurement Regulation expressly pro-

hibits contractors from discriminating

on the basis of age except upon the basis

of a BFOQ or statutory requirement. 32

2rhe FAA's age 60 rule only applies

to a small segment of the flying popula-

tion, that is commercial airiine pilots

covered by 14 C.F.R. §121.383(c). The

petitioner's aviation expert testified

at trial that the FAA's age 60 rule did

not apply to Gathercole since he piloted

“public aircraft" (RT 135), and that the

FAA's age 60 rule does not even apply to

its own pilots who fly passengers (RT

161). Petitioner introduced evidence

showing that his job with Global, pilot-

ing a small piston-powered plane carry-

ing personnel short distances between

South Pacific islands, was substantially

different from the job of a commercial

airline pilot, flying jet airliners over

much longer distances, through more vari-

able weather, and in more crowded air-

Space (RT 39-45).

C.F.R. vol. II, §9, pt. 9 (1982). Global

was merely complying with a discrimina-

tory contractual requirement, not a

federal regaletery requirement compar-

able to the FAA's age 60 rule. The Dis-

trict Court correctly held that "the

fact that the Army seéks to require

[Global] to engage in discriminatory

employment practices does not insulate

[Global] from liability under the Act

- « -” 560 F.Supp. at p. 645 (App. B,

infra, 2la-22a).

The Court of Appeal erred by holding

Global's age 60 limitation lawful

despite the fact that Global failed to

mrove at trial that the age 60 limita-

tion was reasonabiy necessary for pas-

senger safety. The Ninth Circuit's

opinion is contrary to the other Circuit

Courts which have required that the em-

ployer has the burden of proving that

there is a factual basis for a BFOQ. The

employer must meet a two-prong test to

establish a BFOQ: first, the age limita-

tion must be reasonably necessary to the

essence of its business; and second, that

there is a factual basis for believing

that all or substantially all persons

over a certain age would be unable to

perform the duties of the job safely and

efficiently, or that it is impossible or

impractical to ascertain the difference

between older employees who can and can-

not perform the job safely. Tuohy v.

Ford Motor Co., supra, 675 F.2d at p.

844-45; Smallwood v. United Air Lines,

661 F.2d 303, 307 (4th Cir. 1981), cert.

denied, 456 U.S. 1007, 102 S.Ct. 2299

(1982) (age 35 not BFOQ for commercial

airline pilots); ALPA v. Trans World

Airlines, 713 F.2d 940, 950-51 (2nd Cir.

1983), cert. granted, 52 U.S. L.W. 3625

(U.S. 1984) (No. 83-997), cert. granted

sub nom., ALPA v. Thurston, 52 U.S.L.W.

3720 (U.S. April 2, 1984) (No. 82-1325)

(age 60 not BFOQ for flight engineers of

commercial airliners); Monroe v. United

Air Lines, 736 F.2d 394, 400 (7th Cir.

1984) (whether age 60 BFOQ for flight

engineers); Criswell v. Western Airlines,

Inc., supra, 709 F.2d at p. 550-51 (age

60 not BFOQ for flight engineers) ;

Houghton v. McDonnell Douglas Corp., 553

F.2d 561,564 (8th Cir. 1977), cert.

denied, 434 U.S. 966 (1977), reaff'm

under law of the case, 627 F.2d 858,

864-65 (8th Cir. 1980) (age 52 not BFOOQ

for test pilot). The BFOQ is an extreme-

ly narrow exception to the general pro-

hibition against age discrimination.

Dothard v. Rawlinson, 433 U.S. 321, 334

(1977) (sex based discrimination); 29

C.F.R. §860.102(b) (1982). The BFOQ

defense must relate to the actual ability

of the employee to perform the particular

job. Smallwood v. United Air Lines, Inc.,

supra, 661 F.2d at p. 307; Tuohy v. Ford

Motor Co., supra, 675 F.2d at p. 844.

As such, whether a BFOQ has been proven

is a question of fact which can only be

reviewed on appeal under the "clearly

erroneous” standard of review (Smallwood

v. United Air Lines, supra, 661 F.2d at

p- 305; Houghton v. McDonnell Douglas

Corp., supra, 553 F.2d at p. 564); which

the Court of Appeals erroneously failed

to do in this case.

The burden was upon Global, the em-

ployer, to demonstrate that its age limi-

tation was reasonably necessary to the

essence of its business, i.e., passenger

safety, and that there was a factual

basis for believing that it was impos-

sible or impractical to ascertain whether

60-year-old pilots were able to safely

perform the duties of their jobs. Yet,

as the District Court correctly noted in

denying Global's motion for judgment

notwithstanding the verdict, Global

failed to sustain its burden of proof

(App. B, infra, 22a-23a). Therefore,

the Court of Appeals erred by holding

that Global established a BFOQ as a mat~- _

ter of law simply because the FAA's age

60 rule had been incorporated into its

Army contract, despite the fact that the

FAA has never seen fit to apply the rule

to non-commercial airline pilots.

For these reasons, the petition

should be granted to resolve the conflict

between the Ninth Circuit and Sixth Cir-

cuit (Tuohy v. Ford Motor Co., supra) as

to whether an employer may establish a

BFOQ as a matter of law by applying the

FAA's age 60 rule to non-commercial air-

line pilots.

II. THE DEPARTMENT OF LABOR REGU-

LATION (29 C.F.R. §860.102)

INTERPRETING THE BFOQ EXEMP-

TION OF THE ADEA DOES NOT

INSULATE GLOBAL FROM LIABILITY

BY ESTABLISHING A BFOQ AS

A MATTER OF LAW.

To support its conclusion that Global

was exempt from liability, the Court of

Appeals further relied upon the Depart-

ment of Labor regulation [29 C.F.R.

§860.102(1981)]> interpreting the BFOQ

3the Equal Employment Opportunity

Commission has rescinded this regulation

since Gathercole was discharged. The

exemption of the ADEA (App. A, infra,

l3a-15a). The Court completely ignored

subdivision (b) of this regulation which

clearly states that the employer has the

burden of proving that there is a factual

basis for the age limitation. Subdivi-

sions (c) and (d) provide that "illustra-

tions of possible" BFOQ's are "federal

statutory and regulatory requirements...

clearly imposed for the safety and con-

venience of the public," for example,

the FAA's age 60 rule for commercial

"airline pilots within the jurisdiction

EEOC's new ADEA interpretations do not

refer to the FAA rule as an example of a

BFOQ "to avoid the appearance that [the

example] had received the imprimatur of

the Commission." 46 Fed. Reg. 47724,

47725 (Sept. 29, 1981).

The authority for administering the

ADEA was transferred to the EEOC from the

Department of Labor in July, 1979, pur-

suant to Reorganization Plan No. 1 of

1978, 43 Fed. Reg. 19807 (1978); see also

Executive Order 12144, 44 Fed. Reg.

37193.

of the [FAA)." Subdivisions (c) and (d),

contrary to the Court's reasoning, do not

create exceptions to the general defini-

tion of a BFOQ provided by subdivision

(b); but rather, subdivisions (c) and

(d) merely suggest "possible" examples of

BFOQ's for which the employer has the bur-

den of proving a factual basis.

The Labor regulation, when subdivi-

sions (b), (c) and (d) are read together,

cannot reasonably be read in light of the

ADEA, and the near unanimous opinions of

the other Circuit Courts, to establish a

BFOQ as a matter of law for government

contractors such as Global. 4

4No other Court considering this La-

bor regulation has held that it creates

a BFOQ as a matter of law for any em-

ployer. Orzel, supra, 697 F.2d at 748

n.10; ALPA v. TWA, supra, 713 F.2d at p.

951; EEOC v. City of St. Paul, 671 F.2d

1162, 1167 (8th tr 1981). See also EEOC

v. County of Santa Barbara, 666 F.2d 373

(9th Cir. 1982), where the Ninth Circuit,

Furthermore, Global was not comply-

ing with a “federal regulatory require-

ment" since the FAA's age 60 rule did

not apply to Global. Global was simply

complying with a discriminatory contrac-

tual requirement. Because the Army in-

corporated the FAA's age 60 rule into a

single contract does not transform it

into regulation comparable in scope to

that of the FAA. There is no Army regu-

lation or general regulatory requirement

that Army pilots, its contractor's

pilots, or other pilots flying into

Kwajalein airspace be less than 60.

And finally, Global did not prove

that its age 60 rule was “clearly im-

posed" for passenger safety. The only

citing 29 C.F.R. §860.102, stated that

the BFOQ exception is "a narrow one with

the burden upon the employer to estab-

lish the applicability to the particular

circumstances of each case." 666 F.2d

at p. 376 n./7.

evidence adduced at trial by Global of

the Army's basis for the rule was a

single self-serving sentence from a let-

ter by an Army official stating that the

rule was imposed for "reasons of safety

in air transportation at the Kwajalein

Missile Range.” Global failed to prove

that there was an evidentiary basis for

the Army applying an age limitation to

Global's pilots at Kwajalein.

Thus, the Court of Appeals erred by

interpreting the Labor regulation to

create a BFOQ as a matter of law for

Global's age limitation. Congress's

intent in enacting section 4(f) of the

ADEA was to create an extremely narrow

BFOQ exception. If the Labor regulation

broadens the exception to that degree,

then the regulation is contrary to the

intent of the Congress in enacting the

ADEA; and therefore, the regulation would

be void.

III. THE COURT ERRONEOUSLY ALLOWS

THE ECONOMIC INTEREST OF

GLOBAL IN MAINTAINING ITS

ARMY CONTRACT TO JUSTIFY

ITS BFOQ DEFENSE.

The Court of Appeal observed that

Global was placed ina "patently unjust

dilemma"--either break its contract with

the Army and risk losing "the benefit of

its present contract," or “fail in its

obligation to obey a statutory command

of the government” (App. A, infra, l2a~

13a). By so ruling, the Court has im-

*The Court's statement is based on

two mistaken assumptions. Contrary to

the Court's assumptions, Global could

have requested an exemption for its age

limitation from the EEOC (29 U.S.C.

§628, §9 ADEA); and Global was not obey-

ing a “statutory” command.

permissibly allowed Global's economic

interest in maintaining its Army contract

to legally excuse its unlawful discharge

of Gathercole.

It is well established that economic

considerations of an employer cannot be

the basis for a BFOQ under the Act. EEOC

v. County of Los Angeles, 706 F.2d 1039,

1042 (9th Cir. 1983), cert. denied,

U.S. _, 104 S.Ct. 984 (1984); cf. Small-

wood v. United Air Lines, Inc., supra,

661 F.2d at p. 307; Orzel v. City of

Wauwatosa, supra, 697 F.2d at p. 755.

See also 29 C.F.R. §860.103(h) (1981)

(superseded); cf. City of Los Angeles

v. Manhart, 435 U.S. 702 (1978) (cost-

justification defense unavailing ina

Title VII action). The Court thus er-

roneously allows Global's economic con-

Siderations to establish a BFOQ as a mat-

ter of law. Certainly a contract, even

when one party to the contract is the U.S.

government, cannot contravene an act of

Congress, the ADEA.

The ADEA, and other laws prohibiting

employment discrimination, would be ren-

dered meaningless if an employer could

escape liability by incorporating dis-

criminatory provisions into a contract,

and then defend itself by arguing that it

had “no choice" but to discriminate

against an dip loves because it might

otherwise lose its contract.

CONCLUSION

For these reasons, a writ of cer-

tiorari should issue to review the judg-

ment and opinion of the Ninth Circuit

Court of Appeals.

October 1984

Respectfully submitted,

KIM MALCHESKI

MALCHESKI, PARKER

& RANDOLPH

707 Cortland Avenue

San Francisco, CA 941]0

Attorney for Petitioner

APPENDIX

Opinion of the U.S. Court

of Appeals for the Ninth

Circuit--filed March 15,

1984, and modified July

Order of the U.S. District

Court, Northern District

of California, filed March

3a, WSS. cccccccceccesccescsccces l6a

Order of the U.S. Court of

Appeals for the Ninth Cir-

cuit, denying Petition for

Rehearing, filed July 25,

OEE cic cc ccs cececcses eceeeves oo e398

Judgment of the U.S. Dis-

trict Court, Northern Dis-

trict of California,

filed January 7, 1983..........-.4la

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CLARK B. GATHERCOLE, Nos. 83-1885,

83-1894,

Plaintiff-Appellee 83-1920

Cross-Appellant,

D.C. No. C-81-

Vv. 2976 SAW

GLOBAL ASSOCIATES, OPINION

Defendant-Appel-

lant-Cross

)

Appellee. )

)

Appeal from the United States District

Court for the Northern District of

California--Hon. Stanley A. Weigel,

District Judge, Presiding

Argued and Submitted--December 15, 1984

Decided--March 14, 1984

Amended--July 2, 1984

Before: MERRILL, Senior Circuit Judge,

BOOCHEVER, Circuit Judge, and

WYZANSKI,* Senior District Judge.

WYZANSKI, Senior District Judge:

Appellant Global Associates (Global)

*Honorable Charles Edward Wyzanski, Jr.,

Senior District Judge, District of Massa-

Chusetts, sitting by designation.

appeals from the district court's March

31, 1983 judgment that it is liable to

appellee Clark B. Gathercole for its vio-

lation of his rights under §4(a) of the

Age Discrimination in Employment Act

(ADEA), 29 U.S.C. 623(a), in that Global

discharged him because of his age from

his employment as an airline pilot on the

airline-type passenger flights used by

the U.S. Army's Ballistic Missile Defense

System Command for Military Operations.

It is undisputed that: (1) Global

employed Gathercole as an airline pilot

stationed on Kwajalein Island, the prin-

Cipal location of the Kwajalein Missile

Range. (2) Gathercole's sole duty was to

pilot passenger aircraft on the airline-

type passenger flights used by the U.S.

Army's Ballistic Missile Defense System

Command for Military Operations. From

the time that Global first employed

RESELL LIE LI LE LER aT HS NN EE AR RR AMEN SATE BE ANCA ANAC SI

: r 2

Gathercole for a temporary period, from

June 12, 1979 to August 5, 1979, (see

Exhibit A attached to Answer to Com-

plaint), it has been clear that Gather-

cole's "Services are to be performed as

assigned by Employer [Global] in the Mar-

shall Islands in connection with Em-

ployer's performance under Government

Contract NO. DASG60-75-C-0001 or such

other concurrent or successor contracts

as may be executed between Employer and

the Government, or at such other place or

in such other connection as may be desig-

nated by Employer.” And (3) on August 5,

1979 Gathercole had his 60th birthday.

Only because on that day Gathercole

reached 60 Global removed him from active

flight status, and on August 8, 1979

discharged him.

Gathercole complains that Global's

discharge action violated his right under

bdlahs «-seadhalinesae-Sidiate andiseeheihy Sa side bien kes attieriba tanto ait Coad cc audi tran os RR RAEN aR I LRU i RBS Hint ange IIIT BALE

§4(a) of the ADEA, 29 U.S.C. §623(a)

which provides that:

(a) It shall be unlawful for an

employer -- (1)...to discharge

any individual...because of

such individual's age.

In reply to that complaint Global in-

vokes the following exculpatory provision

set forth in §4(f£) of the ADEA, 29 U.S.C.

§623(f):

(f) It shall not be unlawful for

an employer...-- (1) to take

any action otherwise prohib-

ited under subsection[] (a)

...-Of this section where age

is a bona fide occupational

qualification reasonably nec-

essary to the normal opera-

tion of the particular busi-

ness...

Global contends that:

(1) within the meaning of §4(f), "the

particular business" in which Global em-

ployed the plaintiff was that of pilot on

the airline-type passenger flights used

by the U.S. Army's Ballistic Missile

Defense System Command for Military

AS LP SEO fee tages re, par « .) ages, baa ~y - _—— - 7 a

sae: PERE TONS Cee Siidadbiiaed teenie die nice apenas

Operations;

(2) such employment of the plaintiff

was exclusively incident to a contract

between Global and the United States

Department of the Army specifying that

Global shall provide air transportation

for the Kwajalein Missile Range.

(3) The contract between Global and

the U.S. Army's Ballistic Missile Defense

System Command for Military Operations

[Defendant's Exhibit 7] provided, at p.4,

that Global, as contractor, shall "do all

things necessary for the accomplishment of

satisfactory and timely performance of the

requirements outlined in [a specific]

Scope of Work" document. That document,

in turn, explicitly adopted 350 FAA air-

line safety regulations. One of those

adopted regulations of the FAA [see 29

C.F.R. §860.102 (1981)] established a 60-

year age limitation for pilots.

Satie een jeg ate eae reie-t- teenie acune on .

si iS ‘

adie st lk PAID Serge ane FeO ere OS ey he Mean Sapien terete oxic

a . ern initial sieht hae %

unite Mette acheter cok ct tee

We do not know from the record whe-

ther as a fact the FAA held any hearing

in connection with adoption of this 60-

year age regulations (though there is, of

course, a presumption that the FAA com-

plied with its official obligation to

have done so). Nor does the record show

whether the regulation was adopted on the

basis of evidence, or whether the FAA had

before it (in its agency files or else-

anes supporting evidence. All we have

in the district court record is the un-

contradicted recital of an army officer in

a letter to Glcbal to the effect that the

60-year age regulation was imposed "for

reasons of safety in air transportation

at the Kwajalein Missile Range." [See

Defendant's Exhibit 9, Plaintiff's Exhibit

8] [See 560 F. Supp. 644-645]

Before Global discharged Gathercole,

he on July 5, 1979 had info:med Global of

REPEAT ANPP ay Pepa Urry ETRS SEY ALTO MPAp PAPE Wy

| 7 a ant at a: :

his contention that the Age 60 Rule in the

Army's regulation did not satisfy the

requirements of the exculpatory provision

set forth in §4(f) of the ADEA, quoted

supra. Global rejected that contention.

Then Gathercole requested Global to

procure from the Army a waiver of the Age

60 Rule in his case. Accordingly, Global

applied for a waiver by the Army; but the

Army declined to grant it.

As heretofore stated, on Aucsust 5,

1979, Gathercole's 60th birthday, Global

removed Gathercole from active flight

status and on August 8, 1979 it formally

discharged him.

Gathercole's complaint (resting sole-

ly on defendant Global's alleged unlaw-

fulness in discharging him as a pilot,

and not claiming that Gathercole was en-

titled to any other position) was heard

in the Northern District of California by

PN PO Eat eam,

Judge Weigel and a jury. The jury re-

turned a verdict in favor of plaintiff

Gathercole. On March 31, 1983, for rea-

sons set forth in an opinion, Gathercole

v. Global Associates, 560 F. Supp. 642

(N.D.Cal.1983), the court denied defen-

dant's motion for judgment notwithstand-

ing the verdict, or for a new trial, and

entered judgment for plaintiff in eeer~

dance with the verdict.

The only one of the several issues

raised before us which we need to consider

is whether as a matter of law Global's

action discharging Gathercole meets the

standard for exculpation established by

§4(£) of the ADEA, 29 U.S.C. §623(f).

The district court ruled that Global

was not immunized by the contract and the

FAA regulation indirectly incorporated

therein because there was no evidence

that [in words which Judge Weigel strange~

ly quoted at 560 F. Supp. 645 from an

opinion which in its holding was flatly

contra to Judge Weigel's own opinion,

Tuohy v. Ford Motor Co., 490 F. Supp. 258,

264 (E.D. Mich.1980 rev'd on other

grounds, 675 F.2d. 842 (6th Cir. 1982) ]

""an appropriate federal agency has deter-

mined after a full hearing that, as to

persons over the age of 60, it is not

possible to use factors other than age to

predict the likelihood of the onset of a

sudden condition that could imperil the

passengers' (emphasis added)."

There is a certain plausibility in the

district court's view that "Absent evi-

dence of the Army's basis for its deci-

sion, the fact that the Army seeks to re-

quire defendants to engage in discrimina-

tory employment practices in violation of

the ADEA does not insulate defendants

from liability under that Act." 560 F.

10a

Supp. at 645 (footnote omitted). But we

are of the opinion that the district

court's view will not withstand close

analysis.

§4(£) of the ADEA, 29 U.S.C.§623(f)

provides that a liability which would

otherwise exist on account of action

taken by an employer due to the age of

the complaining employee does not exist

if that age factor is "a bona fide occupa-

tional qualification [BFOQ] reasonably

necessary to the normal operation of the

particular business".

Here the so-called BFOQ was not deter-

mined by the Army's reliance on its own

wisdom as to the reliability of pilots

over 60 years of age but on the Army's

reliance on the judgment of the FAA as

expressed in FAA formal regulations

applicable to 60-year-old airplane pilots

of various types. It would be anomalous

lla

for the Army to question that FAA as to

whether the evidence before that agency

had been sufficient to enable it to reach

a sound conclusion. Surely it could pre-

sume that the FAA both procedurally and

substantively performed its duty.

It is sufficient that the Army, know-

ing of the expertise of the FAA, and of

its obligation as a public agency to per-

form its official duty, accepted at face

value its proclaimed standard of necessary

minimum qualification. The Army is not a

court of review for the FAA. Nor is it

incumbent upon the Army to probe the

methods of the FAA. The Army may reasona-

bly assume that the government's expert

agency with respect to flight safety acted

appropriately both procedurally and sub-

stantively.

Global is in an even better defensive

cad

12a

position than the Army. That private

company received its contract on the ex-

press proviso that it would follow offi-

cial regulations. For it to have failed

to do so would have in all probability

caused Global to be justly charged with

breach of contract.

Moreover, certainly Global was in no

position to challenge the applicability

and soundness of or evidentiary support

for the FAA regulations.

In short, the judgment against Global

was erroneous because the district court

failed to afford Global the protection

conferred by §4(f) of the ADEA, 29 U.S.C.

§623(f).

Our conclusion is fortified by our

awareness that the district court's ruling

would subject Global to a patently unjust

dilemma -- either to break its contractual

promise to the government (and thus im-

l3a

peril its own likelihood of retaining the

benefit of its present contract and its

hope of comparable future contracts) or to

fail in its obligation to obey a statu-

tory command of the government. 2

To cap the matter, we note that at

least since 33 FR 9172, June 21, 1968, 29

C.F.R. §860.102 (1981), the Wage and Hour

Division of the United States Department

of Labor, in its official regulations in-

terpreting §4(f) (1) of the ADEA has con-

tained the following interpretive state-

ment:

{c) The following are illus-

trations of possible bona fide

Global's position is in contrist to

that of the employer in Fernandez v. Wynn

Oil Co., 653 F.2d 1273 (9th Cir. 1981)

which attempted to justify failure to pro-

mote a woman because of the preference of

customers in a foreign country to deal

with male business representatives. Un-

like Wynn Oil Co., Global was subject to

statutory and regulatory requirements

enacted to promote safety.

l4a

occupational qualifications.

(dq) Federal statutory and reg-

ulatory requirements which provide

compulsory age limitations for

hiring or compulsory retirement,

without reference ot the indivi-

dual's actual physical condition

at the terminal age, when such

conditions are clearly imposed

for the safety and convenience of

the public. This exception would

apply, for example, to airline

pilots within the jurisdiction

of the Federal Aviation Agency.

Federal Aviation Agency regula-

tions do not permit airline pilots

to engage in carrier operations,

as pilots, after they reach age

60.

Tt is not disputed that ie Gheaxt-

ment of the Army has plenary power to

regulate aviation at the Kwajalein Missile

Range and that the Global contract with

the Army in its "Scope of Work" provisions

required Global to discharge a pilot who

reached age 60. Thus the 60-year

requirement was "regulatory" within the

meaning of 29 C.F.R. 860.102 (1981), just

quoted. Furthermore, the 60-year regula-

tory requirement was “clearly imposed by

15a

the FAA and by the Army for the safety

and convenience of the public". Starr v.

Federal Aviation Administration, 589 F.2d

307, 309 (7th Cir. 1978) and cases there

cited.

Reversed.

l6éa

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

CLARK B. GATHERCOLE,

No. C-81-2976

SAW

Plaintiff,

)

Vv. )

) Filed March 3l,

GLOBAL ASSOCIATES, ) 1983

INTERNATIONAL ATLAS )

SERVICE, ATLAS COR- )

PORATION, H.C. SMITH )

CONSTRUCTION COMPANY, )

JAMES J. MORENA, D.D. )

MCAFEE, and DOES I )

)

through XX, inclusive,

Defendants.

ORDER DENYING DEFENDANTS' MOTION

FOR JUDGMENT NOTWITHSTANDING THE

VERDICT OR, IN THE ALTERNATIVE,

FOR NEW TRIAL

Plaintiff filed this action in 1981

alleging that he was discharged by defen-

dant Global Associates (Global) in viola-

tion of the Age Discrimination in Employ-

ment Act (ADEA), 29 U.S.C. § 621 et seg.

Prior to his discharge, plaintiff was em-

17a

ployed by Global as a co-pilot and then as

a pilot of aircraft from approximately

1964 to 1979. By contract with the

Department of the Army (Army), Global

provides air transportation for the Kwa-

jalein Missile Range (Kwajalein) on the

Marshall Islands. On August 5, 1979, when

plaintiff reached the age of sixty, he

was discharged as an aircraft pilot by

Global on the basis of his age.

Following a three day trial, on

January 7, 1983, the jury returned a ver-

dict in favor of plaintiff in the sum of

$226,406.50. Defendants move for judg-

ment notwithstanding the verdict or, in

the alternative, for new trial.

A motion for judgment notwithstanding

the verdict is properly granted only "if,

without accounting for the credibility of

the witnesses, * * * the evidence and its

inferences, considered as a whole and

18a

viewed in the light most favorable to the

nonmoving party, can support only one

reasonable conclusion--that the moving

party is entitled to judgment notwith-

standing the adverse verdict." William

Inglis & Sons Baking Co. v. ITT Cont.

Baking Co., 668 F.2d 1014, 1026 (9th

Cir.), cert. denied, 103 S.Ct. 57-58

(1982). A new trial is appropriate if

"the jury's verdict was clearly contrary

to the weight of the evidence." Id. at

1027.

Defendants’ Motion for Judgment

Notwithstanding the Verdict

Defendants offer three grounds in sup-

port of their motion. First, they assert

that the so-called "Age 60 Rule," which

requires mandatory retirement of pilots at

age 60, is a bona fide occupational quali-

fication (BFOQ) for their pilots under

Section 4(f) of the ADEA, 29 U.S.C.

19a

§ 623(f), because the army incorporated

the age 60 Rule into Global's employment

contract. Defendants further urge that

the Army has regulatory authority over

air transportation on Kwajalein within

the meaning of 29 C.F.R. § 860.102

(1982)+ and, pursuant to that authority,

has validated the Age 60 Rule for Global's

Iinat Section states in pertinent

part:

The following are illustrations of

possible bona fide occupational

qualifications

(d) Federal statutory and regu-

latory requirements which provide

compulsory age limitations for

hiring or compulsory retire-

ment, without reference to the

individual's actual physical

condition at the terminal age,

when such conditions are clear-

ly imposed for the safety and

convenience of the public.

This exception would apply, for

example, to airline pilots with-

in the jurisdiction of the Fed-

eral Aviation Agency. Federal

Aviation Agency regulations do

not permit airline pilots to en-

gage in carrier operations, as

pilots, after they reach age 60.

20a

pilots.

The record does not support defen-

dants' motion on this ground. Assumino

that the Army has regulatory authority

over air transportation on Kwajalein com-

parable to that which the Federal Avia-

tion Agency (FAA) exercises over commer-

cial air transportation, ” the evidence

does not demonstrate that the Army "clear-

ly imposed [the Age 60 Rule on Global's

operations on Kwajalein) for the safety

and convenience of the public." 29 C.F.R.

§ 860.102 (1981). Defendants presented

no evidence at trial of the Army's basis

for requiring that its airline contractor

at Kwajalein adhere to the Age 60 Rule

other than a letter from an Army official

to plaintiff stating that the Rule was

imposed "for reasons of safety in air

see 14 C.F.R. Part 121.

2la

Range."> This bald assertion does not

constitute evidence that "an appropriate

federal agency has determined after a full

hearing that, as to persons over the age

of 60, it is not possible to use factors

other than age to predict the likelihood

of the onset of a sudden condition that

could imperil the passengers" (emphasis

added). Tuohy v. Ford Motor Co., 490

F. Supp. 258, 264 (E.D. Mich. 1980),

rev'd on other grounds, 675 F.2d 842 (6th

Cir. 1982). Absent evidence of the

Army's basis for its decision, the fact

that the Army seeks to require defendants

to engage in discriminatory employment

practices in violation of the ADEA does

not insulate defendants from liability

3pefendant's Ex. 9. In addition,

defendants failed to demonstrate that all

air traffic flying into Kwajalein was

required to adher to the Age 60 Rule.

22a

under that Bet. *

Second, defendants assert that medi-

cal evidence presented at trial conclu-

sively establishes that the Age 60 Rule

is a BFOQ for Global's pilots. Because

the parties presented conflicting evi-

dence on this issue, defendants are not

entitled to judgment or to a new trial on

this ground. The jury could reasonably

have concluded from the evidence that

application of the Age 60 Rule to Global's

pilots was not reasonably necessary to

the essence of its business, that Global

did not have a sufficient factual basis

for believing that pilots past age 60

would be unable to perform their duties

4 enforcement of the ADEA under these

circumstances will not place defendants

at a competitive disadvantage in compet-

ing for Army contracts. See Gathercole

v. Global Associates, 545 F. Supp. 1280,

1282 ( N.D. Cal. 1982).

23a

safely and efficiently, and that it was

not highly impractical to deal with pilots

past age 60 on an individualized basis.

>The BFOQ instruction stated:

If you find that the plaintiff

has persuaded you by a prepon-

derance of the evidence that he

was terminated by the defendants

and that his age was a deter-

mining factor in his termination,

then you must consider the defen-

dants' defense that age is a

"bona fide occupational quali-

fication" for its pilots. This

defense is usually abbreviated

"BFOQ."

The burden of proof to es-

tablish a BFOQ is on the defen-

dants. If Defendants establish

a BFOQ by a preponderance of the

evidence, then their age discri-

mination is lawful under federal

law.

To establish a BFOQ, defen-

dants must satisfy both elements

of a two-pronged test. First,

defendants must show that the

BFOQ is reasonably necessary to

the essence of defendants' busi-

ness. In this regard, I in-

struct you that the normal essence

cf defendants' business is the

safe transportation of air pas-

sengers. Second, defendants

must show that they had reason-

able cause to believe, that is,

24a

See Criswell v. Western Air Lines, 514 F.

Supp. 384, 389 (C.D. Cal. 1981).

Third, defendants contend that their

good faith reliance on the Department of

Labor's validation of the Age 60 Rule,

see 29 C.F.R. § 680.102 (1981), consti-

a factual basis for believing,

that all or substantiaily all

persons over age sixty (60)

would be unable to perform

safely and efficiently the

duties of a pilot; or that it

is impossible or highly im-

practical to deal with each

pilot over age sixty (60) on

an individualized basis to

determine his particular abi-

lity to perform his job safely.

If you find that defendants

have failed to prove a BFOQ

defense, then you must find for

the plaintiff.

Defendants' objection to this instruc-

tion, and the the Court's failure to give

further instructions concerning the rela-

tionship between passenger safety and the

BFOQ defense, is groundless. See Small-

wood v. United Air Lines, 661 F.2d 303,

307 (4th Cir. 1981), cert. denied, 102

S.Ct. 2299 (1982); Harriss v. Pan Ameri-

can World Airways, 649 F.2d 670, 676-77

(9th Cir. 1980); Criswell v. Western

Air Lines, 514 F. Supp., 384, 389 & n.7

(C.D. Cal. 1981).

25a

tutes a defense to plaintiff's claim pur-

suant to Section 7(e) of the ADEA, 29

U.S.C. § 626(e), which incorporates Sec-

tion 10 of the Portal-to-Portal Act, 29

U.S.C. § 259. That Section provides in

pertinent part:

(a) * * * [N]o employer shall be

subject to any liability or pun-

ishment * * * if he pleads and

proves that the act or omission

complained of was in good faith

conformity with and in reliance

on any written administrative

regulation, order, ruling, approval,

or interpretation, of the agency

of the United States specified

in subsection (b) of this section

x * &

(b) The agency referred to in

subsection (a) of this section

shall be--

(1) in the case of the Fair

Labor Standards Act of 1938,

as amended--the Administrator

of the Wage and Hour Division

of the Department of Labor;

(2) in the case of the Walsh-

Healey Act--the Secretary of

Labor, or any Federal officer

utilized by him in the admini-

stration of such Act; and

(3) in the case of the Bacon-

Davis Act--the Secretary of

Labor.

26a

29 U.S.C. § 259. Defendants are not en-

titled to a good faith defense based upon

29 C.F.R. § 860.102 (1981), because that

regulation validates the FAA's Age 66

Rule only for commercial pilots and not

for pilots of "public" aircraft. Defen-

dants' pilots operated aircraft owned by

the Army. Hence, defendants did not act

"in conformity with" that regulation when

they discharged plaintiff. Thus, their

asserted reliance on 29 C.F.R. § 860.102

(1981) does not entitle them to a good

faith defense. See Gathercole v. Global

Associates, 545 F. Supp. 1280 (N.D. Cal.

1982); Pilkenton v. Appalachian Regional

Hosp. 336 F. Supp. 334, 340 (W.D. Va.

1971).

Defendants also assert that their

reliance in discharging plaintiff on the

Army's adoption of the Age 60 Rule in its

contract with Global entitles them to a

27a

good faith defense. The good faith

defense, however, is available to defen-

dants only if they relied in good faith

upon a regulation issued by the Depart-

ment of Labor. See 29 U.S.C. § 259. The

Army is not authorized to issue binding

regulations interpreting the ADEA, which

is administered by the Department of

Labor. See United States v. Stocks

Lincoln Mercury, 307 F.2d 266, 271 (10th

Cir. 1962) (good faith defense requires

that regulation be issued by agency

"vested with primary or final authority

to administer the provisions of the par-

ticular Act in question"). Consequently,

assuming that the Army's incorporation

of the Age 60 Rule into its contract with

Global constitutes an administrative

regulation within the meaning of 29

U.S.C. §259(a), defendants cannot invoke

that regulation as the basis for a good

28a

faith defense. °

Defendants’ Motion for New Trial

Defendants offer four grounds in sup-

Court's instruction to the jury on the

ADEA's good faith defense was improper.

That instruction stated:

If you find that plaintiff has

established a prima facie case

of unlawful age discrimination,

then you must consider defendants’

second defense, that they reason-

ably relied in good faith on an

administrative regulation to con-

Clude that their termination of

plaintiff would be lawful. For

defendants to establish this

defense, they must prove that in

terminating plaintiff they acted

in actual conformity with the ad-

ministrative regulation. Defen-

dants did not act in actual con-

formity with the regulation, and

hence this defense is not avail-

able to them, if the regulation

they relied upon to terminate

plaintiff did not actually apply

to plaintiff and govern plaintiff's

employment by defendants.

Defendants’ objection to this instruction

is meritless. See 29 U.S.C. §§ 626(e),

259; 29 C.F.R. §§ 790.14(a), 790.14(c)

(1981); see also Pilkenton v. Appalachian

Regional Hosp., 336 F. Supp. 334, 340

(W.D. Va. 1971).

29a

port of their motion for new trial.

First, they contend that submission of a

general verdict without interrogatories

to the jury was improper and prejudicial.

Use of a general verdict is proper in an

ADEA action. See Cancellier v. Federated

Dept. Stores, 672 F.2d 1312, 1317 (9th

Cones eee eee, 20s §.Ct. 131 (1982).

Second, defendants urge that comments

by the Court during trial prejudiced their

case and hence require that a new trial be

granted. A federal district court judge

has broad powers to control the conduct

of trials, to examine witnesses, and to

comment on evidence. See Quercia v.

United States, 289 U.S. 466 (1933). At

the same time, a judge must make "clear

to the jury that all matters of fact are

submitted to their determination." Id.

at 469. The jury was so charged in this

case (Tran., Jan. 7, 1983, at 79-80).

30a

Under these circumstances, the Court's

comments were neither improper nor pre-

judicial to defendants.

Third, defendants contend that the

admission into evidence of Defendants’

Exhibit 16, the Report of the National

Institute on Aging Panel on the Experi-

enced Pilots Study, was improper, preju-

dicial, and requires that a new trial be

granted. ’ That study is a public report

that Congress ordered be prepared and

hence was properly admitted pursuant to

Fed. R. Evid. 803 (8) (B).:

Finally, defendants argue that the

jury's damages award was excessive, and

that consequently a new trial is required.

They offer three grounds in support of

this contention. First, defendants urge

’Defendants' Exhibit 16 was admitted

on plaintiff's motion and over defendants’

objection (Tran., Jan. 7, 1983, at

3-4).

3la

that plaintiff is entitled to backpay only

for the period from the date of his dis-

charge, August 8, 1979, to the date his

"FAA Class I Flight Certificate" (Flight

Certificate) expired, February 3, 1980.°

After his Flight Certificate Expired, de-

fendants assert, plaintiff was not quali-

fied for employment as a pilot by Global.

This contention is without merit.

After his discharge by Global, plaintiff

retired as a commercial pilot and obtained

employment outside the field of aviation.

Plaintiff was not required to maintain

his Flight Certificate once he had been

Gischarged. See Hannan v. Chrysler

Motors, 443 F. Supp. 802, 805 (E.D. Mich.

1978). A plaintiff wrongfully discharged

Bat trial, plaintiff requested back-

pay damages from the date of his discharge

to December 31, 1982, five days prior to

the commencement of trial. See Plain-

SiEe*s Ge. 20.

32a

under the ADEA may recover those wages

and benefits "to which plaintiff would

[have been] entitled had he remained em-

ployed by defendant until the trial date

* * * *" Brennan v. Ace Hardware Corp.,

495 F.2d 368, 373 (8th Cir. 1974); see

Rodriguez v. Taylor, 569 F.2d 1231, 1243

(3d Cir. 1977), cert. denied, 436 U.S.

913 (1978); Monroe v. Penn-Dixie Cement

Corp., 335 F. Supp. 231, 235 (W.D. Ga.

1971). Thus, absent evidence that had

plaintiff continued to be employed by

Global as a pilot he would have been dis-

charged prior to the date of trial for

some reason other than his age, plaintiff

is entitled to lost wages and benefits up

to the date of trial.

Second, defendants assert they are

entitled to a new trial on the ground

that the jury made an improper award of

33a

liquidated damages.” Under the ADEA, if

an employer commits a willful violation

of the Act the plaintiff may recover

liquidated damages in an amount equal to

his lost wages and benefits. 29 U.S.C.

§§ 216(b), 626(b). Defendants argue that

the evidence requires a finding that

Global did not willfully violate the ADEA.

Neither the Act nor its legislative

history describes what constitutes a

willful violation. Courts have filled

this void with a number of conflicting

definitions. See, e.g., Syvock v. Mil-

waukee Boiler Mfg., 665 F.2d 149, 154-56

(7th Cir. 1981) (violation willful if

defendant knew or reasonably should have

-known that action taken violated ADEA) ;

rhe jury's award of $226,406.50

exceeded the $124,983.60 that plaintiff

claimed constituted his lost wages and

benefits. Thus, the jury awarded

plaintiff liquidated damages.

34a

Goodman v. Heublein, Inc., 645 F.2d 127,

131 & n.6 (2d Cir. 1981) (dicta) (viola-

tion is willful in any discriminatory

treatment case, as Opposed to a discrimi-

natory impact case); Wehr v. Burroughs

Corp., 619 F.2d 276, 279-83 (3d Cir. 198C)

(violation willful if intentional, know-

ing, voluntary, or reckless); Leob v.

Textron, Inc., 600 F.2d 1003, 1020 & n.27

(lst Cir. 1979) (dicta) (willfulness re-

quires "specific intent" to disobey or

disregard law); Hays v. Republic Steel

Corp., 531 F.2d 1307 (5th Cir. 1976) (vio-

lation willful if employer knew action

wight have implications under the ADEA).

In this circuit, a violation of the ADEA

is willful if the employer acted volun-

tarily, intentionally, or knowingly. 2°

10, willful violation does not require

that the employer have knowledge that the

contemplated action has "implications un-

Ger the Act * * * *" Kelly, supra, 640 F.2d at 980.

35a

Kelly v. American Standard, Inc., 640 F.2d

974, 979-80 (9th Cir. 1981). Thus, an

employer who violates the ADEA by con-

sciously discharging an employee based

upon the employee's age commits a willful

violaticn of the Act. See Goodman, supra,

645 F.2d at 131 n.6; Kelly, supra, 640

F.2d at 980. By contrast, an employer who

violates the Act by using a selection

criterion that is facially neutral with

respect to age but has a discriminatory

impact on older workers does not neces-

sarily commit a willful violation.

See Kelly, supra, 640 F.2d at 980 & n.9;

Geller v. Markham, 635 F.2d 1027 (2d Cir.

1980), cert. denied, 451 U.S. 945 (1981).

Jlonder those circumstances, the viola-

tion would not be willful unless use of

the facially neutral selection criterion

was a mere pretext for purposeful discri-

mination based on age. Cf. Spagnuolo v.

Whirlpool Corp., 641 F.2d 1109, 1112-13

(4th Cir. 1981).

36a

Defendants in this case concede that

they discharged plaintiff solely because

of his age. This admission is sufficient

to establish willfulness within the mean-

ing of 29 U.S.C. § 626(b). Consequently,

defendants are not entitled to a new trial

based upon the jury's award of liquidated

damages.

Third, defendants contend that the

jury failed to subtract from plaintiff's

lost wages and benefits all of his earn-

ings, unemployment compensation, and

Social Security early retirement benefits

received after his discharge. The jury

was not required to deduct plaintiff's

early retirement benefits from his lost

wages. See Naton v. Bank of California,

649 F.2d 691, 700 (9th Cir. 1981) (bene-

fits plaintiff would have received had he

retired voluntarily not deductible from

lost wages). At trial, plaintiff asserted

37a

that he suffered lost wages and benefits

in the amount of $124,983.60 as a result

of his discharge. See Plaintiff's Ex. 10.

The jury should have offset against this

amount wages in the sum of $12,058.00 and

unemployment benefits in the amount of

$2,288.00 that plaintiff received in miti-

gation of his damages. See Court Ex. l.

These deductions would have reduced plain-

tiff's damages to $110,637.60. The jury

could have properly doubled this amount by

awarding liquidated damages, and reached

a total award of $221,275.20.

The jury's actual award of $113,203.25,

which it doubled by granting liquidated

damages to reach a total award of

$226,406.50, is not inconsistent with the

evidence. Plaintiff's calculations of

his lost wages and benefits were esti-

mates only, see Plaintiff's Ex. 10, and

the jury's award, prior to doubling, was

38a

only $2,565.65 higher than plaintiff's

estimate of his lost wages less his

earnings and unemployment compensation.

The jury could have reasonably concluded

from the evidence that plaintiff's esti-

mate of his lost wages was too conserva-

tive, and accordingly adjusted it slight-

ly upward. Under these circumstances,

the jury's verdict was not inconsistent

with the evidence. See Kelly v. American

Standard, Inc., 640 F.2d 974, 985-86 (9th

Cir. 1981).

Accordingly,

IT IS HEREBY ORDERED that defendants'

motion for judgment notwithstanding the

verdict or, in the alternative, for new

trial is denied.

Dated: March 3l, 1983.

/s/

Stanley A. Weigel

District Court Judge

39a

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CLARK B. GATHERCOLE, No. 83-1885,

83-1894,

Plaintiff-Appellee- 83-1920

Cross-Appellant,

D.C. No. C-81-

Vv. 2976-SAW

GLOBAL ASSOCIATES, ORDER

Defendant-Appellant,

Cross-Appellee.

Filed July 25,

)

) 1984

)

Before: MERRILL, Senior Circuit Judge,

BOOCHEVER, Circuit Judge, and

WYZANSKI,* Senior District Judge.

The panel as constituted in the above

case has voted to deny the petition for

rehearing and to reject the suggestion

for a rehearing en banc.

The full court has been advised of

the suggestion for en banc rehearing, and

no judge of the court has requested a vote

*Honorable Charles Edward Wyzanski, Jr.,

Senior United States District Judge for

the District of Massachusetts, sitting by

designation.

40a

on the suggestion for rehearing en banc.

Fed. R. App. P. 35(b).

The petition for rehearing is denied

and the suggestion for a rehearing en

banc is rejected.

4la

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

CLARK B. GATHSRCOLE,

Plaintiff, C 81-2976 SAW

)

vs ) JUDGMENT

)

GLOBAL ASSOCIATES, ) Filed January 7,

INTERNATIONAL ATLAS ) 1983

SERVICE, ATLAS COR- )

PORATION, H. C. SMITH )

CONSTRUCTION COMPANY, )

JAMES J. MOREAN, D. )

D. MCAFEE, )

)

Defendants.

This action came on for trial before

the Court and a jury, the issues having

been duly tried and the jury having duly

rendered its verdict,

IT IS HEREBY ADJUDGED that the plain-

tiff Clark B. Gathercole recover of the

defendant Global Associates the sum of

$226,406.50, with interest as provided by

law, and his costs of action.

Dated: January 7, 1984

42a

LS/

Stanley A. Weigel

District Court Judge

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